Product Liability Glossary of Legal Terms:

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Civil Liability, Negligent Entrustment, Compensatory Damages

Design Defect, Municipal Litigation, Unjust Enrichment and many more terms defined...

Civil Liability
In a civil lawsuit, if a party is found to be at fault, that party is liable. This is equivalent to a guilty verdict in the criminal system, except that civil liability usually means that the party at fault pays money damages to the other party, whereas the guilty party in a criminal suit may have to go to prison.

Compensatory Damages
Damages awarded to plaintiffs in order to restore them to the position they were in prior to being wronged.

A pre-trial phase in which both parties must exchange all information relevant to the case - often in the form of records, depositions, and other documents - so that each side can fully prepare its case for trial.

Immunity Legislation
In response to municipal lawsuits filed against the gun industry, many states have filed bills that make those lawsuits - both present and potential future suits - illegal. When such a bill becomes law it is referred to as Immunity Legislation because it protects the firearms industry from civil liability.

A lawsuit.

Municipal Litigation
This term applies to lawsuits filed by cities and counties around the country against the firearms industry. These lawsuits represent an attempt to hold the industry financially liable for the costs of gun violence.

Negligence occurs when someone breaches some sort of duty to another person, causing some kind of injury to that person. For example, every driver on the road has a general duty to other drivers and pedestrians to drive reasonably. If, for example, a driver breaches that duty by speeding excessively and causing an accident, that driver may be found negligent.

Negligent Distribution/Marketing
Negligent distribution or marketing occurs when a company breaches a general duty to the public to exercise reasonable care when distributing its products. In regard to the gun industry lawsuits, some cities are claiming that manufacturers should be held liable for breaching a duty to the public by marketing their products in such a way that it was reasonably foreseeable that the guns would end up in the hands of unauthorized users. As an example, some cities cite the gun industry's failure to investigate the background of distributors and retail sellers of their firearms, as well as evidence that the gun industry saturated some markets in order to create illegal secondary markets.

Negligent Entrustment

Negligent entrustment occurs when someone entrusts another with a dangerous article even though the lender knows or should know that the recipient is likely to use it in a way that poses a risk of harm to others. Some lawsuits have been brought against firearms retailers for selling guns to people who were intoxicated, extremely agitated, or in some other condition that would lead any reasonable person to believe that the purchaser intended to use the gun to harm someone.

Lawsuits that have been filed and are awaiting further action. Lawsuits must go through a phase called Discovery, in which both parties exchange all relevant information, before a trial can begin. Most lawsuits are settled out of court before reaching trial.

Normally preemption occurs when the laws of one level of government nullify the laws of a lower level of government. The current Immunity Legislation efforts by some states have put a new twist on preemption because those states are trying to nullify the lawsuits of lower levels of government, not the laws. It is unclear at this time whether it is constitutional to stretch the doctrine of preemption in this way.

Product Liability
A manufacturer of a product may be held liable for damage caused by that product if it was somehow defective, to the point that it was unreasonably dangerous to the consumer. A product can be defective in 3 ways:

  • Manufacturing Defect
    When one particular product out of many like products has a flaw that makes it unreasonably dangerous, it is said to have a manufacturing defect. For example, if one particular toy from an assembly line of identical toys has an unexpected flaw, such as a loose part making it unreasonably dangerous for children, this is a manufacturing defect.

  • Design Defect
    If the actual design of a product makes it unreasonably dangerous, then every product with that design is defective. For example, the poor design of the Ford Pinto is what made it defective, and because the design was common to all Pintos, they were all defective in design. Applied to firearms litigation, plaintiffs allege that because the design of the gun manufacturers' products did not incorporate available and inexpensive safety features to prevent their use by unauthorized users, the products are therefore defective because they are unreasonably dangerous to the consumer.

  • Information Defect/Failure to Warn
    A defendant may be liable for not adequately warning of a product's risk if that risk was known or knowable in light of the best scientific knowledge available at the time of the manufacture. The plaintiffs in the municipal firearms lawsuits argue that the high risk of injuries that might result from the fact that no indicator warns the user if there is a bullet in the chamber of a gun, and that guns can fire even when their magazines are removed, is well-known. They argue that because the gun industry does not adequately warn of this known risk, they should be held liable for failing to warn consumers.

Public Nuisance
Conduct becomes a public nuisance when it substantially interferes with public health, safety, or convenience. In regard to the gun industry lawsuits, some cities are claiming that the gun industry has saturated metropolitan areas with firearms allowing for their use by unauthorized users, resulting in violent crimes and accidents that undermine the public health.

Punitive Damages
This term refers to damages awarded to a plaintiff over and above compensatory damages, designed to punish the defendant for particularly outrageous and malicious conduct, and to serve as a deterrent to others.

An arrangement by which parties in dispute come to an agreement, usually involving some type of compromise exchange of valued things. Over 90% of all lawsuits are settled out of court before a trial ever takes place.

Straw Purchases
This term refers to situations in which authorized firearms purchasers, those capable of passing background checks, buy firearms for unauthorized purchasers.

Summary Judgment
In a civil action, any party may make this procedural motion, after the Discovery phase, to dispose of the suit before trial has begun. If a defendant files a summary judgment motion, that essentially means that, given all of the facts, the defendant believes that the plaintiff's case is too weak to go to trial, and the suit should be thrown out.

Unfair Business/Trade Practices
Refers to generally dishonest or fraudulent business practices that result in injury to the consumer. Applied to the gun industry lawsuits, some cities argue that the gun industry should be liable for unfair business practices because it deceived and made misrepresentations to the public through the marketing and advertisement of its products.

Unjust Enrichment
The general principle of unjust enrichment is that one person should not be able unjustly to enrich himself at the expense of another. Those cities that argue that the gun industry has unjustly enriched itself at the expense of their communities base this claim on the negative effects gun violence has had upon their emergency medical services, police services, public health resources, etc. They basically assert that because the gun industry has been making money off of the sale of its products while communities have suffered in terms of both physical injuries and public health costs, it is time for the industry to pay restitution to the cities.



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